India - Karnataka Government’s Legislative Attempt To Tackle COVID-19 Outbreak.

Legal News & Analysis - Asia Pacific - India - Regulatory & Compliance

14 March, 2020

 

The Karnataka Government is reported to have notified the Karnataka Epidemic Diseases, COVID-19 Regulations, 2020 (“COVID Regulations”), on March 11, 2020, late evening, as an attempt to contain the outbreak and spread of coronavirus, COVID-19, which was incidentally declared as a ‘pandemic’ by the World Health Organisation the same day. Issued with immediate effect and for a period of 1 (one) year from its notification, the COVID Regulations empower the district administration to put in place containment measures and also ensure the public takes special measures to prevent the outbreak and spread of the potentially fatal disease, as fears around its ramifications have reached a feverish high worldwide.

 

Origin of the legislative power

 

At the outset, the burning question is – where does the Karnataka Government get the power to enforce such measures on the State? A British-era law, known as the Epidemic Diseases Act, 1897 (“ED Act”) was enacted to provide for the better prevention of the spread of dangerous epidemic diseases, and is supposed to have played a role in controlling the plague in the 1800s. Sections 2 and 2-A of the ED Act confer powers on the State and Central Governments, respectively, to take certain actions when it is satisfied that the State/India/any part thereof is visited by, or threatened with an outbreak of, any dangerous epidemic disease and the ordinary provisions of law for the time being in force are insufficient for the purpose.

 

The Central Government’s power is somewhat constricted, as the ED Act empowers the Central Government to take measures and prescribe regulations for the inspection of any ship or vessel leaving from or arriving at any port in India, and for the detention thereof. The Ministry of Shipping has, on March 11, 2020[1], issued standard operating procedures to manage international cruise ships at major ports in India (although the SOPs do not specifically refer to the ED Act), which includes a prohibition on an international cruise ship or any of its passengers or crew who have visited a COVID-19 affected country since February 1, 2020, from entering India until March 31, 2020. The Government is also reported to have had a high-level meeting late on March 11, with the outcome having severe bearing on travel restrictions in and out of the country[2]. The decisions taken at such meeting are reported to include suspension of all existing visas (except certain diplomatic, employment and other specified visas) from midnight on March 13 up to April 15, 2020, urging Indian nationals to avoid non-essential travel abroad, subjecting Indian nationals to quarantine for at least 14 (fourteen) days on their return to India, among others[3].

 

On the other hand, under the ED Act, the State Governments are empowered to take, or require any person to take any measures, and by public notice, to prescribe temporary regulations to be observed by the public, or any class(es) of the public. The Karnataka Government has invoked this section of the ED Act reportedly as a precautionary measure and has possibly paved the way for other State Governments to follow suit.

 

What do the COVID Regulations provide for?

 

The COVID Regulations define an ‘Epidemic Disease’ to include COVID-19, confer the status of ‘authorised persons’ on named officers (such as officers of the Department of Health and Family Welfare), and go on to set out detailed guidelines to be followed by hospitals and testing laboratories. The regulations also prohibit any person, institution or organisation from using any print or electronic media for misinformation about COVID-19 and treat the violation of this stipulation as a punishable offence thereunder.

 

A rather significant provision of the COVID Regulations is the conferment of enabling power on local authorities, namely the relevant district administration, to implement containment measures in the event a case of COVID-19 is reported from a defined geographic area. The district administration of such district is empowered to, inter alia:

 

  • bar entry and exit of the population from a containment area;
  • require closure of schools, offices and ban public gatherings;
  • ban vehicular movement in the area;
  • isolate all suspected cases in hospitals.

 

This enabling provision of the COVID Regulations may have far-reaching consequences, given that the local authorities are granted the power to extend measures including but not limited to those set out in the COVID Regulations, and issue such directives to entities without making a distinction between those in the public and in the private sector.

 

Additionally, the COVID Regulations set out requirements for reporting of visits to countries or areas where COVID-19 has been reported, and for isolation of individuals with such travel history in the last 14 days (for individuals who are symptomatic and asymptomatic). Persons who have visited a COVID-19 affected country or area but are asymptomatic are required to isolate themselves at home and avoid contact with persons from the date of arrival/exposure, although the period of quarantine is unclear as it is prescribed as 14 days in one regulation and 28 days in another. Moreover, the COVID Regulations also impose an obligation on any person with a travel history in the last 14 days to a country or area from where COVID-19 has been reported, to report to the nearest Government hospital or call a toll-free helpline number so that necessary action may be taken. Therefore, there is some ambiguity around the quarantine period and the reporting requirements.

 

Another noteworthy aspect of the COVID Regulations is the penalty that may be imposed on a person or organisation found to have violated any provisions thereof. Such person will be deemed to have committed an offence under Section 188 of the Indian Penal Code, 1860 (similar to the penalty provision under the ED Act itself). Section 188 penalises disobedience of an order duly promulgated by a public servant with imprisonment up to a term of 1 (one) month, or 6 (six) months if the disobedience causes danger to human life, health or safety, and/or fine, which may extend up to INR 1,000. The COVID Regulations further empower the Additional Chief Secretary, Health and Family Welfare Department or Deputy Commissioner of the District to penalise any person or organisation violating the regulations or any further orders issued by the Government thereunder, after giving such person reasonable opportunity to be heard.

 

Impact of COVID Regulations

 

While several States are continuously reporting cases of COVID-19 detected within their jurisdictions and are attempting various containment measures (for example, the Kerala Government is reported to have cancelled all public functions scheduled in March, urged people to cancel weddings and other events that could invite mass gatherings, shut schools, colleges and movie theatres until March 31[4]), interestingly, the Karnataka Government is the first to invoke the ED Act to empower government authorities, through legislation, to implement any containment measures.

 

No other State Government has gone so far as to legislatively empower local bodies to issue orders and directions to both public and private bodies to implement such containment measures.

 

Although, it does not appear that any formal orders or directives have been issued by local authorities as yet, it will be interesting to trace how this delegated legislative power will pan out, the actual impact of such orders/directives on containment of the disease, and to what extent such measures will affect day-to-day business.

 

 

 

For further information, please contact: 

 

Rashmi Pradeep, Partner, Cyril Amarchand Mangaldas

rashmi.pradeep@cyrilshroff.com 

 

[1] https://pib.gov.in/newsite/PrintRelease.aspx?relid=200056

[2] https://economictimes.indiatimes.com/news/politics-and-nation/coronavirus-a-pandemic-india-shuts-doors-for-outsiders-under-self-imposed-quarantine/articleshow/74582547.cms

[3] https://economictimes.indiatimes.com/news/politics-and-nation/coronavirus-cases-in-india-live-news-latest-updates-march11/liveblog/74568302.cms

[4] https://www.livemint.com/news/india/coronavirus-update-two-more-people-test-positive-for-covid-19-in-kerala-11583852482247.html